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ANALYSIS OF MARCH 22, 2011 CAV OPINIONS

[Posted March 24, 2011] It’s time for me to catch up with the Court of Appeals, which issued three published opinions on Tuesday. These were the court’s first published opinions in three weeks. Perhaps there is something to the nagging suspicion that the court is running out of new ground to plow, and the case areas comprising its jurisdiction should be reevaluated and expanded. But that’s a venture for another day; for now, let’s get to this week’s opinions.

Domestic relations

Technically, I’ve placed Murphy v. Charlotte County DSS in the correct category, since it arose from a proceeding to remove three children from a home. But it’s really about the question of the Commonwealth’s immunity from attorney’s-fee awards. Once the proceedings to remove his children were dismissed, Murphy asked the JDR court to award him the “significant” fees he had incurred, as provided by statute. DSS responded that it didn’t have to pay attorney’s fees, no matter what the statute said, because as an arm of the Commonwealth, it enjoyed immunity from suit.

Anyone who has fought this battle before knows that governmental immunity in matters like this is absolute unless it has been waived. Murphy’s lawyer conceded in oral argument that the immunity hadn’t been affirmatively waived here. Given this concession, you may be surprised to learn that the court goes ahead and analyzes the issue anyway, without holding that the concession ends the dispute.

That would indeed result in a swift termination of the appellate opinion in the event of a case-dispositive factual concession. But this is a concession of law. Courts aren’t bound by those, and for good reason: If Litigant A made such a concession in one appeal, and the court issued an opinion making a finding like that, then what happens if Litigant B doesn’t agree with the concession in a later appeal? Private parties aren’t free to bind the courts by a concession as to what the law is.

As promising as this sounds, it gets Murphy nowhere. The court decides that the immunity indeed has not been explicitly waived, and such waivers cannot be implicit.

There’s one more ruling here that may have wider application. Murphy points to a statute that gives courts in equity proceedings the ability to award costs to the prevailing party, and argues that the court therefore had the discretion to award such costs. The appellate court rejects this approach, holding that costs don’t equal attorney’s fees, and around here, we still cling to the American rule (each side generally pays its own lawyer).

Criminal law

We get one Miranda appeal this week, in Gibson v. Commonwealth. Gibson was pulled over for an unspecified traffic infraction all the way back in 2008. The officer discovered that Gibson had been declared a habitual offender, so he invited Gibson to have a comfortable seat in the back of his cruiser while he filled out some paperwork. Within moments, the officer noted an odor of alcohol. He turned around and asked, “Have you been drinking?” Gibson conceded that he had indeed consumed three beers. Given the usual self-reporting rate, law-enforcement types in my audience have already mentally doubled that estimate to get a true value of a six-pack.

Now Gibson was asked to step back outside the car, so he could perform some field coordination tests. When asked if he had any physical impairment that might affect his performance, Gibson said he had a bad right knee. He then attempted to perform the tests, with due allowance for the knee, but the officer adjudged him to be under the influence. A later breath test confirmed that, showing .17%, more than twice the legal limit. (Maybe a six-pack would be an under-estimate; that’s pretty pickled.)

In the ensuing DUI-3rd prosecution, Gibson moved to suppress everything that happened after the officer asked him the first question, about whether he had been drinking. The trial court helpfully agreed that asking a question like that of a guy who’s sitting handcuffed in a police car without being Mirandized is improper, so he suppressed the three-beers report. But the judge saw nothing wrong with the officer’s later question about physical impairments, or about Gibson’s performance on the tests.

Gibson appealed the subsequent conviction for DUI-3rd. A panel of the Court of Appeals affirms, finding that Gibson’s performance of the tests wasn’t testimonial, so it didn’t implicate Miranda. That part of the opinion is hardly surprising, and probably didn’t factor into the panel’s decision to publish this opinion. The noteworthy part of this decision is the court’s resolution of a creative argument by Gibson – that the question of whether he had any physical impairment was an impermissible custodial interrogation.

The court finds that it wasn’t. It notes that Gibson’s answer wasn’t incriminating at all, and it classifies the question as “clearly meant to assure the validity of the test and not to elicit an incriminatory response.” Indeed, as the opinion correctly notes, if the officer hadn’t asked for that information, and Gibson had tried to perform the test without the officer’s accommodation, he might have fallen, perhaps injuring himself while simultaneously failing the test.

The court also decides Williams v. Commonwealth, involving prosecutions for failure to appear and failure to provide court-ordered child support. Williams fell tens of thousands of dollars behind in support payments to his ex-wife, and soon found himself indicted for nonsupport. Having been admitted to pretrial bail, he appeared on his initial return date and asked for a continuance to hire a lawyer. The court agreed and set a new trial date eight weeks later.

Alas; on the new date, there was no Williams. The court continued the matter again, announcing the new date (2 ½ weeks later) in open court. But the court didn’t enter an order that day; instead, on the third date, it signed an order (conceivably nunc pro tunc, but that doesn’t affect this discussion) noting that second continuance. Since Williams wasn’t there on the third day, either, the court issued a capias for him. He was later convicted of missing both trial dates – two counts of failure to appear – in addition to two counts of nonsupport.

On appeal, the Commonwealth conceded that one of the failure-to-appear charges should be dismissed. Failure to appear is a specific-intent offense; one’s failure to show up must be willful. (Presumably this will spring you if you’ve been abducted by your fraternity brothers and taken to Daytona Beach on your return date. Use this excuse with considerable discretion.) Since the court didn’t enter an order on the second date, there was no way for Williams to know about the third date, so that conviction vanishes. But the first charge was amply proved.

On the nonsupport charges, Williams argued that the evidence failed to show, as the statute requires, that his failure to pay support put his children in “necessitous circumstances.” Beyond much question, under the facts as recited in this opinion, the family was indeed in that kind of situation, facing repossessed cars and foreclosure notices. But the CAV rules that according to the language of the statute, a defendant’s nonsupport need not place his kids in necessitous circumstances; it merely has to occur while they are so situated. (Here; see for yourself.)

Williams also argues that his ex-wife’s decision to pursue civil enforcement prevents him from being charged criminally with the same conduct. The court notes that this aspect of the requirement of an election is founded upon an old case that was based on res judicata. It finds that this latter doctrine can’t help Williams because (no surprise here) the parties to the two proceedings aren’t the same. In the earlier civil proceeding, the ex was the moving party, and here it’s the Commonwealth.